Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 03F06207
MORRISON, J.
Pursuant to a negotiated disposition, defendant Paul Ramirez pled no contest to one count of voluntary manslaughter (Pen. Code, § 192, subd. (a) - further undesignated statutory references are to the Penal Code unless otherwise specified), and admitted personal firearm use (§ 12022.5, subd. (a)(1)) and gang enhancements (§ 186.22, subd. (b)(1)) in exchange for dismissal of two counts of attempted murder and related charges as well as a sentencing lid of 31 years in prison. The parties also agreed that the trial court would terminate defendant’s probation in Sacramento County Superior Court No. 02F05922 (hereafter No. 02F05922). After finding a factual basis for the plea and admissions (§ 1192.5), the court imposed a 31-year prison term, including a concurrent midterm sentence of three years in No. 02F05922.
On appeal, defendant argues that he should be permitted to withdraw his plea because the court failed to secure a factual basis for the gang enhancement allegation. Defendant also asserts the court’s revocation of probation and imposition of a concurrent term in No. 02F05922 violated the plea agreement because he agreed to termination (but not revocation) of probation.
Defendant obtained a certificate of probable cause for this appeal as required by section 1237.5.
In order to eliminate any issue premised on Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], defendant admitted six sentencing factor “special allegations.”
We conclude that although the court failed to adequately elicit a factual basis for defendant’s admission of the gang enhancement allegation at the time the court accepted the admission, the error was harmless because the probation officer’s report contained sufficient evidence which could have been used to establish such a factual basis. We also conclude the agreement to terminate probation in No. 02F05922 did not preclude revocation of probation and imposition of a prison sentence. (§ 1203.2, subd. (c).) Consequently, we affirm the judgment.
DISCUSSION
I
Factual Basis for Gang Enhancement
Relying on section 1192.5, defendant contends he is entitled to withdraw from his plea bargain because the trial court failed to elicit a factual basis for his admission to the gang enhancement allegation. Although the court did so err, the error was harmless and, therefore, defendant is bound by the agreement.
“Section 1192.5 provides that for a conditional plea of guilty or no contest, the trial court is required to ‘cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.’ While there is no federal constitutional requirement for this factual basis inquiry, the statutory mandate of section 1192.5 helps ensure that the ‘constitutional standards of voluntariness and intelligence are met.’ [Citation.]” (People v. Holmes (2004) 32 Cal.4th 432, 438.) “The factual basis required by section 1192.5 does not require more than establishing a prima facie factual basis for the charges.” (Id. at p. 441, fn. omitted.)
Here, as a factual basis for defendant’s plea and admissions, the prosecutor stated that on August 5, 2003, defendant got into an argument with Christian Enciso and Francisco Burgos. The following day, Enciso and Burgos, now accompanied by Carlos Enciso, drove to a residence where defendant and his brother were on the front lawn. An argument ensued and defendant pulled a gun and shot into the vehicle, killing Carlos and wounding Christian. When Burgos attempted to flee on foot, defendant shot him in the back, then stood over him and attempted to fire more shots into Burgos, but the gun did not discharge. Defendant and his brother then drove from the scene.
While the foregoing factual recitation adequately establishes a factual basis for defendant’s plea to voluntary manslaughter and his admission of the firearm use allegation, and defendant does not contend otherwise, it fails to relate any facts supporting a prima facie basis for the gang enhancement allegation. Consequently, the trial court erred in accepting defendant’s admission to this enhancement.
Nevertheless, the error is not necessarily fatal. Where a court fails to obtain a factual basis for a defendant’s plea, as required by section 1192.5, the plea may stand if the record, which of course includes the probation report, shows a factual basis for the plea. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1562, 1565.) Here, the record does contain the necessary basis.
At the time the court accepted defendant’s plea and admissions, the court informed defendant that he was charged with “voluntary manslaughter [of] Carlos Enciso, committed on August 6th of 2003[;]” that he “personally used a firearm in the commission of that offense;” and that the “voluntary manslaughter” was committed “within the meaning of section 186.22(b)(1) of the Penal Code, that is that you committed the offense for the benefit of, at the direction of, and in association with a criminal street gang, Norteno, with the specific intent to promote, further and assist in criminal conduct by gang members pursuant to the code section.”
The probation officer’s report stated that Christian identified defendant as being one of the “suspects” at the scene, and Francisco positively identified defendant as the one doing the shooting. Both Christian and Francisco identified the suspects as “Norteno gang members, all in red T-shirts.” Francisco also stated that “one of the suspects,” who was a “Norteno,” starts “‘mugging” them whenever they come by the house.”
The report also noted that “defendant is a validated Norteno gang member” and even though defendant denies gang membership “he associates with his brother (co-defendant) who is a gang member.” While defendant had previously been incarcerated in juvenile hall the staff observed that he used the letters “‘SK’ (Sureno Killer) in his artwork.” Finally, in October 2002, defendant had been found in violation of his probation for “associating with known gang members.”
At the very least, the court’s recitation to defendant of the circumstances with which he was charged, coupled with the information relating to his gang involvement, established a prima facie case that defendant was a member of the well-known Norteno gang and that the shooting was in retaliation for the previous gang confrontation. Since the record contains an adequate factual basis for the enhancement, the trial court’s error in not ascertaining such information at the time of the taking of the plea was harmless.
II
Violation of Plea Agreement to “Terminate” Probation
Defendant’s remaining contention is that the court violated the plea agreement when it revoked probation and sentenced him to a concurrent prison term in No. 02F05922, rather than simply terminating probation, as the parties had agreed. In assessing this argument, we look to the intention of the parties as manifested in the words of the plea agreement as recited on the record. (People v. Shelton (2006) 37 Cal.4th 759, 767.)
Citing People v. Walker (1991) 54 Cal.3d 1013, respondent erroneously asserts this contention was forfeited because defendant did not object to the sentence. Walker holds that a defendant who fails to object at sentencing forfeits any claim regarding misadvisement as to the consequences of the plea agreement. (Id. at p. 1023.) However, where the court fails to admonish the defendant in accordance with the third paragraph of section 1192.5, “the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing.” (Id. at p. 1025; cf. People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9 [waiver in this context is more precisely a forfeiture].) Since the court did not give the requisite admonishment, the issue has not been forfeited.
In reciting the terms of the plea agreement, the prosecutor stated there were “two grants of probation which would be terminated under this agreement.” He cited No. 02F05922 as well as Sacramento Superior Court No. 02M06667 (No. 02M06667). Thereafter the court, while advising defendant of the consequences of his plea, stated that “any existing grants of probation or parole that you are currently on can be violated as a result of the plea that you’re about to enter.” The probation report recommended that “further probation be denied” and the court impose a three-year concurrent sentence in No. 02F05922. At sentencing, the court revoked probation in No. 02F05922, denied further probation, and imposed a concurrent midterm sentence. Although the court did not state it was terminating probation, its sentence had that effect. In No. 02M06667, the court granted the People’s motion to terminate probation.
Defendant’s argument assumes that the agreement to terminate probation in No. 02F05922 meant that he would receive no prison time for the conviction in that case. However, both statutory and case law prove this assumption wrong. Pursuant to section 1203.2, subdivision (c), “Upon revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. . . .” (Italics added; Cal. Rules of Court, rule 4.435(a); People v. Howard (1997) 16 Cal.4th 1081, 1087.) Thus, the use of the word “terminate” did not in any way restrict the court’s power to impose a prison sentence. In addition, neither the prosecutor’s nor the court’s summary of the plea agreement with respect to No. 02F05922 gave any hint that the court’s power would be restricted. The court’s comment that any existing grants of probation “can be violated” by the plea further implied that it was the court’s understanding that the plea agreement included no term restricting its use of the power to sentence defendant in accordance with law. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1382 [omission of limit on court’s discretion in plea agreement indicates agreement to allow court to exercise discretion].) Defense counsel’s failure to object at sentencing confirms that this was the defendant’s understanding as well. (Ibid.) In short, the court did not violate the plea agreement by terminating probation and imposing a concurrent prison term in No. 02F05922.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., BUTZ, J.